FIFTH AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of June 28, 2002, amends and supplements that certain Amended and Restated
Credit Agreement dated as of April 30, 1999, as amended to date (the "Credit
Agreement"), among BANDO XXXXXXXXXX SMALL BUSINESS LENDING CORPORATION, a
Wisconsin corporation (the "Company"), the financial institutions from time to
time party thereto (individually a "Lender" and collectively the "Lenders"), and
U.S. BANK NATIONAL ASSOCIATION (formerly known as Firstar Bank, N.A., successor
by merger to Firstar Bank Milwaukee, N.A.), as agent for the Lenders (in such
capacity, the "Agent").
RECITAL
The Company, the Lenders and the Agent desire to amend the Credit
Agreement as provided below.
AGREEMENTS
In consideration of the promises and agreements set forth in the Credit
Agreement, as amended hereby, the Lenders, the Agent and the Company agree as
follows:
1. Definitions and References. Capitalized terms not otherwise defined
herein have the meanings assigned to them in the Credit Agreement. All
references to the Credit Agreement contained in the Loan Documents shall, upon
fulfillment of the conditions set forth in section 3 below, mean the Credit
Agreement as amended by this Fifth Amendment.
2. Amendments to Credit Agreement. The Credit Agreement is amended as
follows:
(a) The definition of "Maturity Date" contained in section 1 is
amended by deleting "June 28, 2002" contained therein and substituting
"June 27, 2003" in its place.
(b) The definition of "Revolving Loan Commitment" contained in
section 1 is hereby amended to read as follows:
"Revolving Loan Commitment" means the obligation of each
Lender to make Revolving Loans to the Company. The total Revolving
Loan Commitment of the Lenders is initially $70,000,000 and is
subject to reduction from time to time pursuant to section 2.6.
The Revolving Loan Commitment of each Lender is such Lender's
Percentage of the total Revolving Loan Commitment and the initial
Revolving Loan Commitment of each Lender is set forth on Exhibit H
attached hereto. Notwithstanding the foregoing, the total
Revolving Loan Commitment of the Lenders shall be reduced by
$10,000,000 on October 31, 2002 and shall be further reduced by
$5,000,000 on February 28, 2003, provided that such reductions
shall reduce only the Agent's Revolving Loan Commitment hereunder.
The Revolving Loan Commitments of each Lender and their respective
Percentages after the foregoing reductions are as set forth on
Exhibit H attached hereto.
(c) The Company and the Lenders acknowledge that, simultaneously
with the execution of this Fifth Amendment U.S. Bank National Association
shall reduce its Revolving Loan Commitment by $5 million to $45 million.
The Company and the Lenders further acknowledge and agree that the new
Percentages and Revolving Loan Commitments of each Lender are as set
forth on Exhibit H attached to this Fifth Amendment and incorporated into
the Credit Agreement.
(d) Exhibit H attached hereto shall be deemed to be an exhibit to
the Credit Agreement.
3. Effectiveness of Fifth Amendment. This Fifth Amendment shall become
effective upon its execution and delivery by the Company, the Lenders and the
Agent and satisfaction of the following conditions:
(a) Closing Certificate of the Company. The Agent shall have
received copies for each of the Lenders, certified by the Secretary of
the Company to be true and correct and in full force and effect, of (i) a
statement to the effect that the Articles of Incorporation and By-Laws of
the Company delivered to the Lenders on April 30, 1999 have not been
amended since that date and remain in full force and effect as of the
date hereof; (ii) resolutions of the Board of Directors
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of the Company authorizing the issuance, execution and delivery of this
Fifth Amendment; and (iii) a statement containing the names and titles of
the officer or officers of the Company authorized to sign such documents,
together with true signatures of such officers.
(b) Reaffirmation of Guaranty. The Agent shall have received a
reaffirmation of guaranty duly executed by the Guarantor in form and
substance satisfactory to the Agent pursuant to which the Guarantor
reaffirms its obligations to the Lenders and the Agent..
(c) Proceedings Satisfactory. All other proceedings contemplated
by this Fifth Amendment shall be satisfactory to the Lenders and the
Agent, and the Lenders and the Agent shall have received such other
information relating hereto as the Lenders or the Agent may reasonably
request.
4. Representations and Warranties. The Company represents and warrants to
the Lenders and the Agent that:
(a) The execution and delivery of this Fifth Amendment and related
documents, and the performance by the Company of its obligations
thereunder, are within its corporate power, have been duly authorized by
proper corporate action on the part of the Company, are not in violation
of any existing law, rule or regulation of any governmental agency or
authority, any order or decision of any court, the Articles of
Incorporation or By-Laws of the Company or the terms of any agreement,
restriction or undertaking to which the Company is a party or by which it
is bound, and do not require the approval or consent of the shareholders
of the Company, any governmental body, agency or authority or any other
person or entity; and
(b) The representations and warranties contained in the Loan
Documents are true and correct in all material respects as of the date of
this Fifth Amendment except (i) the representations and warranties
contained in section 3.3 of the Credit Agreement shall apply to the most
recent financial statements delivered by the Company to the Lenders
pursuant to sections 5.1 and 5.2 of the Credit Agreement and (ii) for
changes contemplated or permitted by the Loan Documents and, to the
Company's knowledge, no condition exists or event or act has occurred
that, with or without the giving of notice or the passage of time, would
constitute an Event of Default under the Credit Agreement.
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5. Costs and Expenses. The Company agrees to pay to the Agent, on demand,
all costs and expenses (including reasonable attorneys' fees) paid or incurred
by the Agent in connection with the negotiation, execution and delivery of this
Fifth Amendment.
6. Full Force and Effect. The Credit Agreement, as amended hereby,
remains in full force and effect.
7. Counterparts. This Fifth Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Fifth Amendment by signing any such
counterpart.
[Intentionally Left Blank, Signatures Appear on Next Page]
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BANDO XXXXXXXXXX SMALL BUSINESS
LENDING CORPORATION
BY /s/ Xxxxx X. Xxxxx
-------------------------------------
Its Vice President Finance
--------------------------------
U.S. BANK NATIONAL ASSOCIATION
(formely known as Firstar Bank, N.A.,
successor by merger to Firstar Bank
Milwaukee, N.A.), as the Agent and a
Lender
BY /s/ Xxx X. Xxxxx
-------------------------------------
Its Vice President
-------------------------------
LASALLE BANK NATIONAL
ASSOCIATION (formerly known
as LaSalle National Bank)
BY /s/Xxxxx Xxxxxx
------------------------------------
Its Commercial Bank Officer
-------------------------------
M&I XXXXXXXX & XXXXXX BANK
BY /s/ Xxx Xxxx
-------------------------------------
Its Vice President
------------------------------
BY /s/ X. X. Xxxxxx
-------------------------------------
Its Senior Vice President
------------------------------
S-1
EXHIBIT H
Lenders' Revolving Loan Commitments
1. Prior to October 31, 2002:
--------------------------------- ------------------------- ----------------
Lender Revolving Loan Commitment Percentage
--------------------------------- ------------------------- ----------------
U.S. Bank National Association $45,000,000 64.2857143%
--------------------------------- ------------------------- ----------------
LaSalle Bank National Association $15,000,000 21.4285714%
--------------------------------- ------------------------- ----------------
M&I Xxxxxxxx & Ilsley Bank $10,000,000 14.2857143%
--------------------------------- ------------------------- ----------------
2. On and After October 31, 2002 but Prior to February 28, 2003:
---------------------------------- --------------------------- -----------------
Lender Revolving Loan Commitment Percentage
---------------------------------- --------------------------- -----------------
U.S. Bank National Association $35,000,000 58.3333333%
---------------------------------- --------------------------- -----------------
LaSalle Bank National Association $15,000,000 25.0000000%
---------------------------------- --------------------------- -----------------
M&I Xxxxxxxx & Xxxxxx Bank $10,000,000 16.6666667%
---------------------------------- --------------------------- -----------------
3. On and After February 28, 2003:
----------------------------------- --------------------------- ----------------
Lender Revolving Loan Commitment Percentage
----------------------------------- --------------------------- ----------------
U.S. Bank National Association $30,000,000 54.5454545%
----------------------------------- --------------------------- ----------------
LaSalle Bank National Association $15,000,000 27.2727273%
----------------------------------- --------------------------- ----------------
M&I Xxxxxxxx & Ilsley Bank $10,000,000 18.1818182%
----------------------------------- --------------------------- ----------------
